Part 1 continued    

(b)the person is participating as a witness in criminal proceedings;

(c)the person is bringing any civil proceedings including pursuing
compensation.

(3)Where the person is receiving assistance from a support worker, the
5recommendations of the support worker must be considered in assessing that
person’s circumstances under subsection (2)(a).

(4)Immigration rules must provide for persons granted leave to remain in
accordance with this section to have recourse to public funds for the duration
of the period of leave.

(5)10Immigration rules must provide for leave to remain to be granted from the day
on which the conclusive determination is communicated to a person for at least
12 months.

(6)Immigration rules must allow a grant of leave to remain under subsection (5)
to be extended subject to the requirements of subsection (7).

(7)15In determining whether to extend a grant of leave to remain under subsection
(6), and the period of time for which such extended leave should be provided,
the person’s individual circumstances must be considered, and whether that
person meets one or more of the criteria in subsection (2).

(8)A person may be refused leave to remain if—

(a)20the person is a sexual or violent offender; and

(b)the Secretary of State considers that the person poses a genuine, present
and serious risk to members of the public.

(9)If subsection (8) applies, the Secretary State must ensure the person affected is
given reasons for the refusal in writing.

(10)25In this section—

• “competent authority” means a person who is a competent authority of
  the United Kingdom for the purposes of the Council of Europe
  Convention on Action against Trafficking in Human Beings;

• “conclusive determination” means a determination that a person is, or is
  30not, a victim of slavery or human trafficking when the identification
  process conducted by a competent authority concludes that the person
  is, or is not, such a victim;

• “EEA national” means a national of a State which is a contracting party to
  the Agreement on the European Economic Area signed at Oporto on 2
  35May 1992 (as it has effect from time to time);

• “immigration rules” has the meaning given by section 33 of the
  Immigration Act 1971;

• “sexual or violent offender” means a person falling within the definition
  of a “sexual or violent offender” in section 327 of the Criminal Justice
  40Act 2003 (section 325: interpretation) or who has been convicted of an
  offence under the law of another country which would have
  constituted an offence falling within those subsections if it had been
  done in England and Wales;

• “victim of slavery” and “victim of human trafficking” mean a person
  45falling within the definition of a “victim of slavery” or “victim of human
  trafficking” in section 56 of the Modern Slavery Act 2015 (section 56:
  interpretation).

Part 2 Social security co-ordination

13 Power to modify retained direct EU legislation relating to social security co-
ordination

(1)5An appropriate authority may by regulations modify the retained direct EU
legislation mentioned in subsection (2).

(2)The retained direct EU legislation is—

(a)Regulation (EC) No 883/2004 of the European Parliament and of the
Council on the co-ordination of social security systems;

(b)10Regulation (EC) No 987/2009 of the European Parliament and of the
Council laying down the procedure for implementing Regulation (EC)
No 883/2004;

(c)Regulation (EEC) No 1408/71 on the application of social security
schemes to employed persons, to self-employed persons and to
15members of their families moving within the Community;

(d)Regulation (EEC) No 574/72 fixing the procedure for implementing
Regulation (EEC) No 1408/71;

(e)Regulation (EC) No 859/2003 extending Regulation (EEC) No 1408/71
to nationals of non-EU Member Countries.

(3)20The power to make regulations under subsection (1) includes power—

(a)to make different provision for different categories of person to whom
they apply (and the categories may be defined by reference to a
person’s date of arrival in the United Kingdom, their immigration
status, their nationality or otherwise);

(b)25otherwise to make different provision for different purposes;

(c)to make supplementary, incidental, consequential, transitional,
transitory or saving provision;

(d)to provide for a person to exercise a discretion in dealing with any
matter.

(4)30The power to make provision mentioned in subsection (3)(c) includes power to
modify—

(a)any provision made by primary legislation passed before, or in the
same Session as, this Act;

(b)any provision made under primary legislation before, or in the same
35Session as, this Act is passed;

(c)retained direct EU legislation which is not mentioned in subsection (2).

(5)EU-derived rights, powers, liabilities, obligations, restrictions, remedies and
procedures cease to be recognised and available in domestic law so far as they
are inconsistent with, or are otherwise capable of affecting the interpretation,
40application or operation of, provision made by regulations under this section.

(6)“EU-derived rights, powers, liabilities, obligations, restrictions, remedies and
procedures” means any rights, powers, liabilities, obligations, restrictions,
remedies and procedures which continue to be recognised and available in
domestic law by virtue of section 4 of the European Union (Withdrawal) Act
452018 (including as they are modified by domestic law from time to time).

(7)In this section, “appropriate authority” means—

(a)the Secretary of State or the Treasury,

(b)a Northern Ireland department, or

(c)a Minister of the Crown acting jointly with a Northern Ireland
department.

(8)5Schedule 2 contains further provision about the power to make regulations
under this section.

(9)Schedule 3 contains provision about the making of regulations under this
section.

Part 3 10General

14 Interpretation

In this Act—

• “domestic law” means the law of England and Wales, Scotland or
  Northern Ireland;

• 15“Minister of the Crown” has the same meaning as in the Ministers of the
  Crown Act 1975 and also includes the Commissioners for Her
  Majesty’s Revenue and Customs;

• “modify” includes amend, repeal or revoke (and related expressions are
  to be read accordingly);

• 20“primary legislation” means—

  (a)

  an Act of Parliament;

  (b)

  an Act of the Scottish Parliament;

  (c)

  an Act or Measure of Senedd Cymru;

  (d)

  Northern Ireland legislation.

15 25Extent

(1)Subject to subsections (2) to (5), this Act extends to England and Wales,
Scotland and Northern Ireland.

(2)Her Majesty may by Order in Council provide for any of the provisions of Part
1 of this Act, and of sections 14 and 17 (so far as relating to that Part), to extend,
30with or without modifications, to—

(a)any of the Channel Islands;

(b)the Isle of Man;

(c)any of the British overseas territories.

(3)A power listed in subsection (4) may be exercised so as to extend, with or
35without modifications, to any of the Channel Islands or the Isle of Man any
repeal or other amendment, made by Part 1, of legislation to which the power
relates.

(4)The powers are the powers under any of the following provisions—

(a)section 36 of the Immigration Act 1971;

(b)40section 163(4) of the Nationality, Immigration and Asylum Act 2002;

(c)section 60(4) of the UK Borders Act 2007.

(5)Regulations under section 5 may provide that an amendment, repeal or
revocation made by those regulations has the same extent as the provision
amended, repealed or revoked (ignoring extent by virtue of an Order in
Council under any of the Immigration Acts).

16 5Commencement

(1)Part 1 comes into force on such day as the Secretary of State may by regulations
made by statutory instrument appoint except sections—

(a)9,

(b)10, and

(c)1011

which come into force six months after the day on which this Act is passed.

(2)Regulations under subsection (1) may make different provision for different
purposes.

(3)Part 2 comes into force on such day as the Secretary of State or the Treasury
15may by regulations made by statutory instrument appoint.

(4)Regulations under subsection (3) may make different provision for different
purposes or areas.

(5)This Part comes into force on the day on which this Act is passed.

(6)The power of the Secretary of State or the Treasury to appoint a day under
20subsection (1) or (3) includes a power to appoint a time on a day if the Secretary
of State or, as the case may be, the Treasury considers it appropriate to do so.

17 Short title

This Act may be cited as the Immigration and Social Security Co-ordination
(EU Withdrawal) Act 2020.

SCHEDULES

Section 1

Schedule 1 Repeal of the main retained EU law relating to free movement etc.

Part 1 5EU-derived domestic legislation

1Section 7 of the Immigration Act 1988 (exemption from requirement for
leave to enter or remain for persons exercising EU rights etc.) is omitted.

2(1)Section 109 of the Nationality, Immigration and Asylum Act 2002 (power to
make regulations about appeals against immigration decisions in respect of
10persons having, or claiming to have, EU rights) is omitted.

(2)The Immigration (European Economic Area) Regulations 2016 (S.I. 2016/
1052), made under section 2(2) of the European Communities Act 1972 as
well as under section 109 of the 2002 Act, are revoked.

(3)In consequence of the repeal made by sub-paragraph (1), in the following
15provisions of the 2002 Act, omit “or by virtue of section 109”—

(a)section 106(3) and (4);

(b)section 107(3).

3In the Provision of Services Regulations 2009 (S.I. 2009/2999), in regulation
5 (general exclusions and savings), after paragraph (2) insert—

“(2A)20Nothing in these Regulations affects the interpretation,
application or operation of any provision made by or under
the Immigration Acts.”

Part 2 Retained direct EU legislation

4(1)25Article 1 of the Workers Regulation is omitted.

(2)Articles 2 to 10 of the Workers Regulation cease to apply so far as—

(a)they are inconsistent with any provision made by or under the
Immigration Acts (including, and as amended by, this Act), or

(b)they are otherwise capable of affecting the interpretation, application
30or operation of any such provision.

(3)In this paragraph, “the Workers Regulation” means Regulation (EU) No
492/2011 of the European Parliament and of the Council of 5 April 2011 on
freedom of movement for workers within the Union.

Part 3 EU-derived rights etc.

5(1)Any rights, powers, liabilities, obligations, restrictions, remedies and
procedures which—

(a)5continue to be recognised and available in domestic law by virtue of
section 4 of the European Union (Withdrawal) Act 2018, and

(b)are derived from Articles 1, 2, 3(1) to (4), 4, 6, 7, 12, 13, 17(b), 20, 23 or
24 of Annex 1 of the Swiss free movement agreement (or, so far as
relating to any of those Articles of that Annex, Articles 3 to 6 of the
10agreement),

cease to be recognised and available in domestic law.

(2)In sub-paragraph (1), “the Swiss free movement agreement” means the
Agreement between the European Community and its Member States, of the
one part, and the Swiss Confederation, of the other, on the free movement of
15persons (done at Luxembourg on 21 June 1999).

6(1)Any other EU-derived rights, powers, liabilities, obligations, restrictions,
remedies and procedures cease to be recognised and available in domestic
law so far as—

(a)they are inconsistent with, or are otherwise capable of affecting the
20interpretation, application or operation of, any provision made by or
under the Immigration Acts (including, and as amended by, this
Act), or

(b)they are otherwise capable of affecting the exercise of functions in
connection with immigration.

(2)25The reference in sub-paragraph (1) to any other EU-derived rights, powers,
liabilities, obligations, restrictions, remedies and procedures is a reference to
any rights, powers, liabilities, obligations, restrictions, remedies and
procedures which—

(a)continue to be recognised and available in domestic law by virtue of
30section 4 of the European Union (Withdrawal) Act 2018 (including as
they are modified by domestic law from time to time), and

(b)are not those described in paragraph 5 of this Schedule.

(3)The reference in sub-paragraph (1) to provision made by or under the
Immigration Acts includes provision made after that sub-paragraph comes
35into force.

Section 13(8)

Schedule 2 Further provision about the scope of the power under section 13

Part 1 Scope of the power of a Minister of the Crown acting alone or jointly

140No provision that would be within the legislative competence of the Scottish
Parliament if it were contained in an Act of that Parliament may be made—

(a)by the Secretary of State or the Treasury acting alone, or

(b)by a Minister of the Crown acting jointly with a Northern Ireland
department,

in regulations under section 13, unless that provision is merely incidental to,
or consequential on, provision that would be outside that legislative
5competence.

2In considering, for the purposes of paragraph 1, whether a provision would
be within the legislative competence of the Scottish Parliament if it were
contained in an Act of that Parliament, no account is to be taken of section
29(2)(d) of the Scotland Act 1998 so far as relating to EU law.

10Part 2 Scope of the power of a Northern Ireland department acting alone

No power to make provision outside devolved competence

3No provision may be made by a Northern Ireland department acting alone
in regulations under section 13 unless the provision is within the devolved
15competence of the Northern Ireland department.

4A provision is within the devolved competence of a Northern Ireland
department for the purposes of this Schedule if—

(a)the provision, if it were contained in an Act of the Northern Ireland
Assembly—

(i)20would be within the legislative competence of the Assembly
(ignoring section 6(2)(d) of the Northern Ireland Act 1998 so
far as relating to EU law), and

(ii)would not require the consent of the Secretary of State,

(b)the provision—

(i)25amends or repeals Northern Ireland legislation, and

(ii)would, if it were contained in an Act of the Northern Ireland
Assembly, be within the legislative competence of the
Assembly (ignoring section 6(2)(d) of the Northern Ireland
Act 1998 so far as relating to EU law) and require the consent
30of the Secretary of State, or

(c)the provision is provision which could be made in other subordinate
legislation by any Northern Ireland devolved authority acting alone
(ignoring section 24(1)(b) of the Northern Ireland Act 1998).

Requirement for consent where it would otherwise be required

5(1)35The consent of the Secretary of State is required before any provision is made
by a Northern Ireland department acting alone in regulations under section
13 so far as that provision, if contained in an Act of the Northern Ireland
Assembly, would require the consent of the Secretary of State.

(2)Sub-paragraph (1) does not apply if—

(a)40the provision could be contained in subordinate legislation made
otherwise than under this Act by a Northern Ireland devolved
authority acting alone, and

(b)no such consent would be required in that case.

(3)The consent of a Minister of the Crown is required before any provision is
made by a Northern Ireland department acting alone in regulations under
section 13 so far as that provision, if contained in—

(a)subordinate legislation made otherwise than under this Act by the
5Northern Ireland department, or

(b)subordinate legislation not falling within paragraph (a) and made
otherwise than under this Act by a Northern Ireland devolved
authority acting alone,

would require the consent of a Minister of the Crown.

(4)10Sub-paragraph (3) does not apply if—

(a)the provision could be contained in—

(i)an Act of the Northern Ireland Assembly, or

(ii)different subordinate legislation of the kind mentioned in
sub-paragraph (3)(a) or (b) and of a Northern Ireland
15department acting alone or, as the case may be, a Northern
Ireland devolved authority acting alone, and

(b)no such consent would be required in that case.

Requirement for joint exercise where it would otherwise be required

6(1)No regulations may be made under section 13 by a Northern Ireland
20department, so far as they contain provision which relates to a matter in
respect of which a power to make subordinate legislation otherwise than
under this Act is exercisable by—

(a)a Northern Ireland department acting jointly with a Minister of the
Crown, or

(b)25another Northern Ireland devolved authority acting jointly with a
Minister of the Crown,

unless the regulations are, to that extent, made jointly with the Minister of
the Crown.

(2)Sub-paragraph (1) does not apply if the provision could be contained in—

(a)30an Act of the Northern Ireland Assembly without the need for the
consent of a Minister of the Crown, or

(b)different subordinate legislation made otherwise than under this Act
by a Northern Ireland devolved authority acting alone.

Requirement for consultation where it would otherwise be required

7(1)35No regulations may be made under section 13 by a Northern Ireland
department acting alone, so far as they contain provision which relates to a
matter in respect of which a power to make subordinate legislation
otherwise than under this Act is exercisable by a Northern Ireland
department after consulting with a Minister of the Crown, unless the
40regulations are, to that extent, made after consulting with the Minister of the
Crown.

(2)Sub-paragraph (1) does not apply if—

(a)the provision could be contained in an Act of the Northern Ireland
Assembly, and

(b)45there would be no requirement for the consent of a Minister of the
Crown, or for consultation with a Minister of the Crown, in that case.

(3)Sub-paragraph (1) does not apply if—

(a)the provision could be contained in different subordinate legislation
made otherwise than under this Act by a Northern Ireland devolved
authority acting alone, and

(b)5there would be no requirement for the consent of a Minister of the
Crown, or for consultation with a Minister of the Crown, in that case.

Interpretation

8In this Part of this Schedule—

• “Northern Ireland devolved authority” means—

  (a)

  10the First Minister and deputy First Minister in Northern
  Ireland acting jointly,

  (b)

  a Northern Ireland Minister, or

  (c)

  a Northern Ireland department;

• “subordinate legislation” means any instrument made under primary
  15legislation.

Part 3 Transitional provision

Transitional exception

9Section 24(1)(b) of the Northern Ireland Act 1998 (restriction on acting
20incompatibly with EU law) does not apply to the making of regulations
under section 13.

Section 13(9)

Schedule 3 Regulations under section 13

Part 1 25Statutory instruments

1Any power to make regulations under section 13—

(a)so far as exercisable by the Secretary of State or the Treasury, or by a
Minister of the Crown acting jointly with a Northern Ireland
department, is exercisable by statutory instrument, and

(b)30so far as exercisable by a Northern Ireland department (other than
when acting jointly with a Minister of the Crown), is exercisable by
statutory rule for the purposes of the Statutory Rules (Northern
Ireland) Order 1979 (SI 1979/1573 (NI 12)) (and not by statutory
instrument).

Part 2 Scrutiny of regulations under section 13

Scrutiny where sole exercise

2(1)A statutory instrument containing regulations of the Secretary of State or the
5Treasury under section 13 may not be made unless a draft of the instrument
has been laid before, and approved by a resolution of, each House of
Parliament.

(2)Regulations of a Northern Ireland department under section 13 may not be
made unless a draft of the regulations has been laid before, and approved by
10a resolution of, the Northern Ireland Assembly.

(3)This paragraph does not apply to regulations to which paragraph 3 applies
(Minister of the Crown and a Northern Ireland department acting jointly).

Scrutiny where joint exercise

3Regulations under section 13 of a Minister of the Crown acting jointly with
15a Northern Ireland department may not be made unless—

(a)a draft of the statutory instrument containing those regulations has
been laid before, and approved by a resolution of, each House of
Parliament, and

(b)a draft of the regulations has been laid before, and approved by a
20resolution of, the Northern Ireland Assembly.

Combination of instruments

4(1)Sub-paragraph (2) applies to a statutory instrument containing regulations
under section 13 which is subject to a procedure before Parliament for the
approval of the instrument in draft before it is made.

(2)25The statutory instrument may also include regulations under another Act
which are made by statutory instrument which is subject to a procedure
before Parliament that provides for the annulment of the instrument after it
has been made.

(3)Where regulations are included as mentioned in sub-paragraph (2), the
30procedure applicable to the statutory instrument—

(a)is the procedure mentioned in sub-paragraph (1), and

(b)is not the procedure mentioned in sub-paragraph (2).

(4)Sub-paragraphs (1) to (3) apply in relation to a statutory rule as they apply
in relation to a statutory instrument but as if—

(a)35the references to Parliament were references to the Northern Ireland
Assembly, and

(b)the reference to another Act in sub-paragraph (2) included Northern
Ireland legislation.

(5)Sub-paragraphs (1) to (3) apply in relation to a statutory instrument
40containing regulations under section 13 which is subject to a procedure
before the Northern Ireland Assembly as well as a procedure before
Parliament as they apply to a statutory instrument containing regulations
under section 13 which is subject to a procedure before Parliament but as if